Protecting the Right to Vote in the 2016 Elections

Voters stand in line at an early voting site in Charlotte, North Carolina, in October 2008.AP/Chuck Burton

The real measure of election integrity is that every eligible American can cast a vote that is counted. But this fundamental right is being threatened in the 2016 elections. Fourteen states will have new laws cutting back on voting rights and access in place for the first time in a presidential election.

In 2013, the U.S. Supreme Court removed core legal protections for voting rights that were enshrined in the Voting Rights Act in its Shelby County v. Holder decision. Now, in further fallout from that decision, the U.S. Department of Justice, or DOJ, announced that the agency will cut back a key voting rights protection—the federal election observer program—that the country has relied on for more than 50 years to prevent voter suppression at the polls.

For the right to vote to be effective, every voter must be able to exercise that right free from discrimination and intimidation. The Voting Rights Act of 1965, or VRA, authorized federal election observers to enter polling locations, monitor the voting process, and report voting rights violations. However, the authorization for federal election observers is tied to the VRA Section 4(b) preclearance formula, which was the provision that the Supreme Court struck down in Shelby County. Even though the Court did not consider any issues related to election observers in Shelby County, the DOJ determined that the decision nevertheless undercut the authorization of federal election observers. Thus, the Court’s decision to invalidate Section 4 of the VRA allows states to implement laws that restrict voting rights in racially discriminatory ways without federal review, as people now have to challenge those laws in court after their voting rights are already being trampled. Furthermore, it prevents the oversight of elections—a practice necessary to identify and rectify voting rights violations.

This summer, voters celebrated a series of wins in legal challenges to voting restrictions in Texas, North Carolina, Wisconsin, North Dakota, and elsewhere. However, some elections officials have since defied the courts’ decisions and sought to impose racially discriminatory, overly burdensome, and patently unnecessary voter suppression tactics. Recently, Texas was placed under court supervision after state officials were found to have violated Judge Nelva Gonzales Ramos’ August order forbidding the state from enforcing its strict voter ID laws. Despite a federal appeals court ruling that struck down North Carolina’s “monster” suppression law because it targeted African American voters with “almost surgical precision,” members of the state’s Republican leadership encouraged local election board officials to cut back early voting hours, particularly Sunday voting, and close polling locations in communities of color. The state elections board ultimately rejected these attempts by imposing new election plans that expanded voting hours and added polling places to many of the state’s counties.

U.S. Attorney General Loretta Lynch described election observers as the “eyes and ears” of voting rights enforcement. Indeed, election observers have played an essential role in the DOJ’s efforts to monitor the voting process in real time, discourage noncompliance with the law, and record evidence of violations that can be used in future litigation. These efforts have been critical in protecting voting rights for people of color, Americans with limited English proficiency, Americans with disabilities, and other eligible voters who may face discrimination at the polls. Julie Fernandes of the Open Society Foundations offers examples of the critical role that federal election observers play in protecting voting rights in a recent essay:

In 2012, federal observers monitoring an election in Shelby County, Alabama, documented the closing of doors on African-American voters before the voting hours were over, as well as voting officials using racial epithets to describe voters. That same year, observers were sent to Alameda and Riverside Counties in California to gather information regarding reports of serious failures to provide language assistance to voters who needed it. In 2011, a federal court relied on observer reports to conclude that Sandoval County, New Mexico, had effectively disenfranchised members of the Keres tribe. In 2010, during the early voting period in Harris County, Texas, federal observers documented intimidation and harassment targeting Latino and African-American voters by an organized, well-funded Texas-based organization with clear partisan electoral goals.

The DOJ has determined that without the VRA in full force, its tools for monitoring elections have been severely limited. Prior to Shelby County, the Office of Personnel Management, or OPM, specially recruited and trained federal election observers who the DOJ could send to jurisdictions with histories of voting rights violations. In the 2004 presidential election, the DOJ reported that about 840 federal observers and another 250 department personnel monitored elections in 86 jurisdictions in 25 states. As it stands now, these observers can only be sent to jurisdictions that are subject to a pertinent court order; only five jurisdictions in the country are currently under such an order. The DOJ may also send attorneys and other personnel to act as observers, but these so-called attorney coverage personnel have less legal authority to demand access to polling places. And instead of the OPM providing training and travel funding for federal observers, the DOJ must now fund the attorney coverage personnel.

It is imperative that the federal government act now to keep faith with the American people and guarantee that all eligible voters can exercise their fundamental right to vote on Election Day. Where necessary and appropriate, the DOJ should seek additional court orders to send authorized election observers to jurisdictions that have a history of voting discrimination or that have enacted new voting restrictions in recent years.

Most importantly, Congress should give prompt consideration to legislation that would create a new preclearance formula to prevent discriminatory voting practices and restore the VRA to full strength. The consequences of voter suppression for each individual whose voice is silenced and for all Americans who are making collective decisions about the nation’s future through the ballot are simply too critical for continued inaction. Considering that 14 states have new voting restrictions that will be in effect for the 2016 elections, Congress must not delay action to protect voting rights any longer.

With the curtailment of the number of federal observers, it is that much more important for civil society to help protect against voter intimidation, misinformation, and suppression. Engaged citizens and community groups meet with election officials and work with them to create effective election administration plans that ensure efficient elections with maximum voter participation. Those concerned with protecting the fundamental right to vote can research potential indicators of possible election meltdowns and advocate for policies and practices that ensure that the voices of all American citizens are heard at the polls. Further, Americans of goodwill can volunteer as poll workers; make sure poll workers are appropriately trained; and educate voters about making a plan to be prepared to vote in order to guarantee that voters’ rights are protected.

Voting rights are at the heart of what it means to engage in self-government and exercise accountability over our elected representatives. America’s long journey to reach equality at the ballot box will not end in 2016. The fact that fewer federal election observers will be deployed this year provides one more reason why every American must stand up for voting rights and voter protection, speak out against voter suppression, and declare forcefully that all eligible voters should be able to have their voices heard at the polls to determine the future of their families, their communities, and our great nation.

For more information, voters who have questions can call 866-OUR-VOTE or visit www.866ourvote.org to get information and assistance.